Serving a prison sentence during a pandemic is certainly "unusual" and may also meet the standard of being "cruel," an attorney contended to the Minnesota Court of Appeals this week.

Dan Shulman, of the American Civil Liberties Union, asked a three-judge panel to take another look at the conditions faced by inmates at the Minnesota Correctional Facility in Moose Lake after a district court dismissed a legal action challenging their incarceration last summer.

"The punishment that they're assigned, and that they're sentenced to, was a term in prison," Shulman said. "This, in effect, is an additional punishment. It's as if they had a beating from the guards, because the correction officers, the staff, is undoubtedly a source of infection. This is something that is avoidable, preventable and treatable, and yet they are being subjected to it. I submit that that is a form of punishment."

The ACLU and state public defender's office sued the Minnesota Department of Corrections last April on behalf of several inmates at the medium-security prison, which was the first in the state to report positive tests for COVID-19.

PREVIOUSLY: American Civil Liberties Union sues to release Moose Lake inmates

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They argued that officials have been lax in enforcement of social distancing and mask-wearing, also failing to conduct regular testing or identifying and protecting inmates most vulnerable to the virus. The attorneys sought an order requiring prison officials to enforce certain safety measures, as well as the release of low-risk offenders with less than six months remaining on their sentences.

But Judge Leslie Beiers of Duluth sided with the DOC in July, dismissing the petition after determining that officials had "taken the threat seriously and responded with reasonable and appropriate steps to mitigate the spread of COVID-19 and to identify, isolate and treat those who have contracted the disease."

Moose Lake had 904 inmates as of Wednesday, down from approximately 1,050 at the start of the pandemic. The DOC reported 188 confirmed or presumed infections, with 23 still active on Wednesday. There has been one death.

About 80 inmates were confirmed or suspected positive at the time of the lawsuit's dismissal, during a period in which the outbreak appeared to be contained at Moose Lake. Crediting the agency's efforts to combat an "ever-changing virus," Beiers said at the time that there was no evidence of a "deliberate indifference" on the part of prison officials.

PREVIOUSLY: Judge dismisses Moose Lake prison lawsuit

Shulman acknowledged that the agency had implemented many well-intentioned policies, but said he didn't believe the measures were being effectively enforced — contending that the 100-plus new infections could have been avoided.

"There is actual knowledge of the threat," he said Tuesday. "More than that, there is actual knowledge of what needs to be done to combat the threat. And then third, there is evidence that it's not being done."

Assistant Minnesota Attorney General Steve Forrest defended the agency's response and asked the panel to uphold the petition's dismissal. The DOC has said that it quickly implemented masks, distancing and sanitization measures, among other precautions.

"Appellants' habeas petition seeks the most extraordinary form of relief available to an incarcerated individual under Minnesota law, and that is to effectively overturn or supersede the criminal sentencing court's orders committing them to prison," Forrest said.

"The burden to achieve this extraordinary remedy is understandably high. To be released from prison, Minnesota statute requires that appellants demonstrate the illegality of their detention. It is not enough to merely allege that the DOC is doing something wrong, as habeas does not remedy all wrongs, but rather only wrongs that result in unlawful detention or restraint."

PREVIOUSLY: Concern in Moose Lake, where prison has COVID-19 outbreak

One of the appellate judges, Carol Hooten, seemed to agree with Shulman that the district court should have granted an evidentiary hearing — a trial, essentially — to hear evidence and allow for cross-examination of witnesses.

"There seems to be a lot of disputed facts here as to whether the duty was met by the DOC," she said.

But the judges also questioned whether there is any precedent to support the prisoners' claims that their confinement has been rendered unlawful as a result of a pandemic.

"There's no question, I don't believe, that the prisoners are appropriately imprisoned," Judge Randall Slieter told Shulman. "You're referring to cruel and unusual punishment, and yet it's a health issue. And I don't see any cases that referred to conditions related to health."

Hooten, Slieter and Judge Matthew Johnson took the case under advisement and will issue a ruling within 90 days.